Is there a First Amendment right to lie in politics?

 David Schultz, The Daily Record Newswire

Is there a First Amendment right to lie in the course of a political campaign, such that candidates or groups can say whatever they want about an opponent or issue and have it protected as a form of free speech? While recent case law seems to suggest yes, there is a compelling argument that electoral lies ought not to receive First Amendment protection and that there needs to be some outer limits on what can be said in campaigns in order to promote the integrity of the electoral process.

What role should truth or lies have in politics? There are really two questions here: The first involves the ethics of lying, the second the permissibility and constitutionality of deception in politics. Generally, and across cultures, lying is considered ethically wrong. Philosopher Immanuel Kant provided perhaps one of the most powerful arguments against lying in asserting that deceivers lie in order to make themselves an exception to a rule that they expect everyone else to follow. By that standard, we live in a world where we generally accept people to tell the truth and we conform actions, make judgments, and act as if others were truthful. Liars profit by taking advantage of this expectation.

Lying is wrong because if such a practice were universalized — if we lived in a world where we did not expect truth telling — it would be nearly impossible for most social interaction to occur. Political scientist Robert Putnam has examined the role that social capital plays in terms of enhancing political participation and commerce in society. Social capital is related to trust. So much of what makes commerce, business, and most human interaction possible is trust; it is the idea that we can expect people to keep their word or that they will follow up on their promises. Simply put, if trust did not exist in the world, then business — except, perhaps, face-to-face bartering — would never exist. Contracts would be meaningless, promises futile.

Yes, there are some exceptions to truth-telling in our private lives. Lying to save a life is acceptable. One might also assert that lies to encourage people — telling a child they did a good job when they did not as a way to motivate them to work hard — might also be acceptable. According to this view, truth-telling must be balanced against other competing objectives, and in some cases the latter weigh more heavily.

But in general, lying is wrong in our private lives and such a prohibition is often enforced. Perjury is wrong and punishable by law. False advertising is regulated as deceptive. In both cases, the justification is that the lies distort the search for truth and the marketplace of ideas. In law, the adversarial system is supposed to discover the truth, but that does not mean that witnesses can lie and that lawyers should facilitate that. Instead, the adversarial system relies on all parties playing fairly and not lying. Clear lies make it difficult for juries to do their job in sorting out the facts to determine the truth. Similarly, false advertising corrupts the marketplace of ideas, making it difficult for consumers to form reasonable judgments when making purchasing decisions.

Now the problem is how to apply the prohibition against lying to politics. Plato spoke of the noble lie about the origin of social hierarchies to promote social harmony. Machiavelli approved of the prince lying as a means of staying in power. And sociologist Max Weber, in “Politics as Vocation,” distinguished Christian ethics from the ethics of ultimate responsibility, the latter where politicians weighed truth against other competing values. Such logic, according to Sissela Bok in her classic “Lying: Moral Choice in Public and Private Life,” has led politicians such as Richard Nixon to justify deception to promote national security, prevent hysteria, or protect people. But as Bok cogently asserted, such a utilitarian justification for lying is often self-serving, paternalistic, and more importantly, undermines democracy in the sense that it prevents the people themselves from being able to make informed choices. Telling the truth promotes democracy, lying hinders it.

If government officials should not lie, what about individuals, candidates and groups involved in campaigns and elections? Should they be allowed to misstate the record of others, to distort the facts on ballot propositions, or simply to lie in the context of political debate? Ethically there should be no debate, and one should hope as a matter of personal virtue and integrity that this would be the case.

But personal integrity is not always enough. American politics is littered with a long record of personal lies and deceptions, be it Bill Clinton’s false assertions about his relationship with Monica Lewinsky or Swift Boat Veterans for Truth’s distortion of John Kerry’s Vietnam record. Something more is needed to encourage personal integrity in politics, much in the same way that legislatures add legal sanctions to encourage truth-telling in court. When the stakes are great, the incentives to lie are often too tempting.

This brings us back to the question we started with: Is there a First Amendment right to lie? In adjudicating the constitutionality of Minn. Stat. sec. 221B.06, which makes it a gross misdemeanor to disseminate a political communication that one knows is false, the Eighth Circuit effectively said yes in 281 Care Comm. v. Arneson, 638 F.3d 621 (8th Cir. 2011). The Court was concerned with how such a law would chill free speech. Was the Court right? There are many reasons to question the court’s analysis.

First, the Supreme Court has already ruled that deception lies outside of First Amendment protection. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), it ruled that the government had a legitimate interest in preventing fraud and libel in campaigns where false statements might have “serious adverse consequences.” Promoting the integrity of the electoral process was a legitimate reason to prohibit deception.

Second, as noted above, one cannot always rely upon personal integrity to guarantee political participants will tell the truth. Lies occur and one cannot always rely upon the marketplace of ideas to ensure that the public will be able to sort out fact from fiction. Over a quarter of the population still believes that Barack Obama is not a U.S. citizen. As Michael Delli Carpini and Scott Keeter point out in “What Americans Don’t Know About Politics and Why it Matters,” many voters are woefully ignorant about politics. They simply lack either the knowledge or skills to distinguish fact from untruth. They rely upon political actors to tell them the truth so that they can make informed decisions. Lying prevents that.

Rules against false campaign statements define an outer limit on deception. Without any limits, there are no real sanctions against lying. Some might argue that electoral defeat is the sanction, but in many cases the political process cannot be counted on to smoke out lies and punish accordingly. Third, a prohibition on lying actually enhances robust debate and democracy. Much in the same way that prosecuting perjury strengthens the adversarial process, drawing limits on deception in politics does the same.

Finally, there are two remaining arguments used to justify the protection of political lies under the First Amendment. One is the claim that the people should decide what truth is, the other that government should not be making decisions about political orthodoxy or veracity. In general both assertions are true, but the judicial process — especially juries — make decisions about truth all the time. Juries often have to make decisions about witness credibility, determine what the facts are, and render decisions on whether libel, slander, or false advertising occurred. The judicial process is all about making decisions about what the truth is. Determining whether someone has lied politically can also be judged by the people through the courts. The other claim is that there is no standard determining when someone has lied. In N.Y. Times Co. v. Sullivan, 376 U.S. 254, (1964) the Court articulated the actual malice standard in the political defamation context, defining the boundary between what is and is not protected by the First Amendment.

There are many reasons why the voters have become increasingly more cynical about politics and why they distrust politicians. Surveys suggest that public perception of increased lying in the political process, and a concomitant district of politicians, is a major factor. Perhaps making it clear that the First Amendment does not protect political lies is one way to strengthen democracy and encourage better political behavior.

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